Long-Term Disability (LTD) matters can be complicated and contentious. As lawyers and insurance claims representatives know, dealing with complex medical and legal concepts at a time when an LTD applicant’s emotions are running high over the financial implications of debilitating illness or disability can sometimes make for a challenging time at the mediation table. But, there are other reasons why the best intentions of the parties to work towards a settlement at mediation can run into stumbling blocks.
In this blog post, I discuss problems and pitfalls that could derail an LTD mediation session, offer some solutions to these problems, and outline the best practices I use as a mediator to facilitate efficient and elective communication between the parties.
A common theme I’ve identified is the importance of keeping track of time: ensuring documentation is not outdated, knowing when to obtain reports, planning ahead for mediation to confirm all information and decision-making authority needed to settle is accessible.
Stumbling Blocks and Solutions for LTD Mediations
1. Problem: Lack of supporting evidence and/or supporting documentation – Whatever the reason(s) for the LTD matter to come to mediation, if the parties cannot adequately support their argument and/or their monetary “ask” with evidence at the time of mediation, settlement talks may break down.
Solution: Provide up-to-date productions or have evidence on hand that supports your position – LTD mediations occur prior to discoveries or after discovery. If sufficient time has passed between discovery and the mediation date, some information may be out of date. It is imperative for all parties to have confidence that they have accurate information from which to discuss a potential settlement.
For plaintiffs, evidence or documentation to prove causation of the disability and degree of disability is essential to obtain the best settlement. A report evaluating pre-accident versus post accident functionality is critical to establish a plaintiff’s inability to work. The report should clearly and credibly explain that the applicant could previously do ABC and can now only do A. It should also clearly reference what documentation was reviewed and considered in coming to its findings.
Other plaintiff productions may include family doctor reports, consultation notes, treatment records, expert reports and evaluations and loss of income documentation including tax returns and income loss reports.
For the defence (and its claims representative), productions could include their own expert’s assessments and, potentially, surveillance evidence they intend to use at a future trial. The presence or absence of this evidence may influence a plaintiff’s valuation of their case and risk exposure.
2. Problem: Not knowing your numbers – The second major element of productions concerns documentation of costs and losses due to the disability. Without appropriate evidence to support the reasons behind a settlement offer, the other party may not be able to accept it or make a suitable counteroffer.
Solution: Have loss of income documentation / reports served well in advance of the mediation. The plaintiff ought to produce up-to-date documentation of their past earnings (tax returns and employment records) and unrealized future earning potential (performance reviews, industry earnings averages, loss of income reports) well in advance of the mediation. This will enable the defence to consider this documentation and obtain the necessary settlement authority to work to resolve the claim at mediation.
The defence should also strive to come into the mediation with the authority that it believes is reasonable given the file, approved range for settlement offers and whether it has final decision-making authority.
3. Problem: Unrealistic expectations or unrealistic offers – If a plaintiff or the defence has not adequately assessed its best and worst day in court, they may enter mediation with an unrealistic assumption of what the matter should settle for. This may cause a challenging start to the mediation as it often leads to unreasonable high-ball offers and/or low-ball counteroffers wasting precious time that could be used to productively hash out the issues and find common ground.
Solution: Manage expectations and confide in the mediator – While a reality check at mediation can be helpful if needed, managing client expectations in advance will likely save time and reduce stress at mediation. It can take a period of adjustment for sky-high numbers to be pulled back towards the ground, and time is precious on mediation day.
The parties should consider before the mediation how they will deal with a range of potential offers and responses. Will their strategy be reactive and based on the other parties’ movements, such as a high-ball offer begets a low-ball counteroffer? Or will they use a set response to communicate where they need to end up in order to settle?
When you work with a mediator you are comfortable collaborating with you can communicate to them your client’s flexibility and allow them to signal to the other parties that there may be room to move and the mediator may be able to encourage the opposing party to keep at the negotiations.
Preparing Your LTD Claim For Mediation
Some, if not all, of the above issues can be dealt with through careful planning and cooperation between the mediator and the parties involved. I employ the following best practices to help parties solve common problems before mediation.
- Encourage the parties to ensure all necessary productions are identified, available and exchanged in a timely manner prior to mediation.
- Offer pre-mediation conferences and/or have one-on-one conversations with participants that may be used to prepare and obtain the best results at the mediation.
This type of advance preparation allows everyone to get right down to work and make efficient use of their time together. If the matter does not settle on the mediation day but the parties sense a settlement is still possible, effective mediators will work with parties to come up with a roadmap to settlement they can use for future discussions (either with the mediator or on their own).
Choosing The Right Mediator For LTD Claims
All mediators should possess certain skills (neutrality, conflict resolution techniques, and discretion when being made privy to sensitive information) to do their job competently. But for certain cases, selecting a mediator who has honed particular skill sets can be advantageous for all parties.
In my practice, I find it beneficial to offer participants a 360-degree perspective of the strengths, weaknesses, and risks of their LTD case. While maintaining neutrality, providing an independent and informed third-party analysis of a case can help parties make an educated decision about how to proceed.
Drawing on my legal training and time as an adjudicator, I offer observations about the dynamics at hearings and trials, relate practical examples from similar cases, and use my experience assessing witness testimony and expert reports to explain how a party’s case may be viewed by a judge or jury.
One party may believe they have an excellent, persuasive report to support or refute certain facts in the case. But, if the report neglects to include commentary on pertinent details, it may not be deemed persuasive.
Hearing a mediator’s well-informed and honest impression of a party’s case may change a risk assessment. But, a party needs to trust the mediator to put any stock in these discussions. Therefore, I strive to build connections and foster relationships with participants, before and during mediation. I use experience, knowledge, empathy, active listening, and patience to create an environment in which participants feel heard, respected, and understood.
Everyone at the table should feel confident that a mediator’s comments are designed to support all parties to come to a mutually acceptable agreement.
Conclusion
You can’t turn back time on mediation day if you or the other side is not prepared. And, if someone is not ready, it can be an enormous waste of everyone’s time and money.
By working with a mediator who offers case management, all parties should be ready to present their case in the best light possible to reach their mediation objectives. By working with an experienced mediator whose training and skills provide a value-added 360-degree perspective, all parties should be confident they have gained insight into the strengths, weaknesses, and relative risks of their case.
If you’re looking for an effective, experienced, and efficient mediator for your LTD case, please feel free to contact me to discuss how I can assist all parties in the matter in making the best use of your time and money.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at lacey@schnappmediation.com or (647) 250-7216.
